Farrakhan v. Selsky

Mercure, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. After a hearing, petitioner was found guilty of violating prison disciplinary rules prohibiting harassment, threats, refusing to obey a direct order, damaging property, committing an unhygienic act and obstructing visibility into his cell. The penalty imposed was restitution, loss of certain privileges and 360 days of confinement to the special housing unit with 180 days suspended. After finding the instant CPLR article 78 proceeding to have been timely commenced, Supreme Court transferred the proceeding to this Court for resolution. Petitioner’s challenge to the administrative determination must be dismissed due to his failure to timely file an executed order to show cause (see, Matter of Fry v Village of Tarrytown, 226 AD2d 461, lv granted 88 NY2d 811; William Ct.—White Hill Rd. Homeowners Assn. v New York State Commr. of Mental Retardation & Dev. Disabilities, 161 Misc 2d 552, 560; see generally, Matter of Gershel v Porr, 89 NY2d 327, 332; see also, CPLR 217, 304). Mikoll, J. P., Crew III, White and Yesawich Jr., JJ., concur. Adjudged that the petition is dismissed, without costs.